The ACLU has been making huge strides in the fight for photographers’ rights lately, especially with last month’s decision of Glik vs Cunniffe in Massachusetts which confirmed that photography of police is protected by the Constitution.

Besides filing another lawsuit in Maryland over police deleting a man’s footage, it is preparing for an important case that questions the constitutionality of the Illinois wiretapping law, which forbids citizens from recording cops in public without their consent.

ACLU vs Alvarez was dismissed last year by an either clueless or corrupt federal judge in Illinois named Suzanne B. Conlon on the basis that recording police is not protected by the First Amendment.

Conlon comes across more power drunk than many of her judicial peers, according to her Wikipedia page.

Conlon’s temperament has been noted in a couple of notable controversies during her tenure as a federal judge. First, she fired a law clerk for refusing to carry her lunch up a flight of stairs when the elevator was not working. Second, she fired a law clerk on September 11, 2001 for complying with a evacuation order on the Senator Everett Dirksen Federal Building in Downtown Chicago. 

And according to the Chicago Council, a website where Illinois attorneys rate judges:

Attorneys, however, report that Judge Conlon has a substantial temperament problem. When she believes that an attorney or a party has not followed her directions, she loses judicial perspective and instead can become personally vindictive towards the attorney or the litigant.

Attorneys report that Judge Conlon cuts off objections and prevents making a record for appeal. Others report that she has humiliated attorneys before the jury. For example, attorneys report that when a lawyer has been five minutes late to court, instead of scolding the lawyer, where appropriate, she has called the jury out into court so that it can observe the lawyer coming in late. There are other examples where her ire at attorneys or parties has inappropriately affected the results of cases.

The Council believes that Judge Conlon does have the potential to be a good judge, although her inflexibility and rigidity on schedules are troubling. The gaps in her knowledge will likely be filled in over time. The deficiencies in her temperament and judgment, however, are serious and unacceptable. At present, many lawyers have the clear impression that she is neither fair nor reasonable.

The ACLU appealed her bizarre decision and is now preparing for oral arguments beginning September 13. A decision could be handed down before the end of the year, which could turn out to be a momentous victory for Illinois and especially for Michael Allison and Christopher Drew, the two men who are facing prison time for recording cops.

According to the ACLU:

We are challenging the application of Illinois’ Eavesdropping Act to the arrest or prosecution of individuals who make audio recordings of public conversations with police, conversations with police who are performing their public duties in a public place and speaking in a voice loud enough to be heard by the unassisted human ear.

The odds seem to fall on the ACLU’s side, especially since last month’s Glik case, which was decided in the First Circuit Court of Appeals. ACLU vs Alvarez will be decided in the Seventh Circuit and there is a tendency for the circuit courts to agree with one another.

According to the Right to Record blog, which is operated by a law student with a vast knowledge of case law in these types of cases:

[Glik vs Cunniffe] has important implications for the Seventh Circuit case. Judge Conlon’s opinion can only stand if there is no First Amendment interest in recording police. Affirming Conlon’s opinion those grounds would not only directly conflict with the Eleventh Circuit opinion Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000), but now also with this First Circuit opinion.

If the Seventh Court affirms Conlon’s opinion, then the matter will most likely have to be settled by the U.S. Supreme Court, which might not be such a bad thing.

The ACLU has also just launched an information campaign on its website, including a detailed guide on photographers’ rights  which makes a handy printout and addendum to Bert Krages’ famous guide.

The right of citizens to record the police is a critical check and balance. It creates an independent record of what took place in a particular incident, free from accusations of bias, lying or faulty memory. It is no accident that some of the most high-profile cases of police misconduct have involved video and audio records.

Of course, photography is not necessarily “objective” and it is always possible in a particular case that there can be circumstances at work outside a photographic record. Overall, however, the incidents above make it abundantly clear that respect for the right to photograph and record is not well-established within the law enforcement profession.

Many of those involved in these incidents appear to be activists who know their rights and are willing to stand up for them. But not everyone is able to stand up to police officers when harassed; we don’t know how many other Americans comply with baseless orders to stop photographing or recording because they are uncertain of their rights or too afraid to stand up for them.

The ACLU also intends to sue the Philadelphia Police Department later this month on behalf of four citizens who had their cameras seized or destroyed before they were arrested on disorderly conduct charges for attempting to record what they believed was police abuse.

The ACLU also reached a settlement this week against the University of Pittsburgh for another incident involving a camera two years ago.

The American Civil Liberties Union and the remaining defendant in a civil rights case have reached a settlement in a lawsuit filed after a man used his cell phone to take video of a police officer questioning his friend.

The University of Pittsburgh will pay $48,500 in damages because one of its police officers arrested Elijah David Matheny, 29, of the Hill District for recording the incident.

The ACLU has generally stood up for citizens in these instances, but it has also remained silent in many cases, including my first arrest where the ACLU’s Miami chapter informed me that it could not help me – even though I was a dues-paying member at the time.

Thankfully, the Society of Professional Journalists reached out to me.